Wrigglesworth v. Brumbaugh

Decision Date30 November 2000
Docket NumberNo. 5:00-CV-15.,5:00-CV-15.
PartiesGene WRIGGLESWORTH, in his capacity as Ingham County Sheriff and Ingham County, Plaintiffs/Counter-Defendants, v. Ellis BRUMBAUGH, Defendant/Cross and Counter-Plaintiff, and Capitol City Lodge No. 141 of the Fraternal Order of Police, a labor association, Defendant/Cross-Defendant.
CourtU.S. District Court — Western District of Michigan

John R. McGlinchey, Cohl, Stoker & Toskey, PC, Lansing, MI, for Gene Wriggelsworth, in his capacity as Ingham County Sheriff, plaintiff.

Thomas A. Baird, White, Przybylowicz, Schneider & Baird, PC, Okemos, MI, for Ellis Brumbaugh, an individual, defendant.

R. David Wilson, Wilson, Lawler & Lett, Lansing, MI, for Capitol City Capitol City, Lodge No. 141 of the Fraternal Order of Police, a labor association, defendant.

OPINION

ENSLEN, Chief Judge.

This matter is before the Court on the parties' cross-motions for summary judgment. For the reasons which follow, the Court will grant summary judgment in favor of Defendant/Cross and Counter-Plaintiff Ellis Brumbaugh, Jr. and against the other parties.

FACTS

The following facts appear from the evidence filed by the parties: Ellis Brumbaugh, Jr. enlisted in the National Guard reserves on August 19, 1968. He remained on reserve status until March 14, 1984. (Brumbaugh Deposition at 5.)

On July 5, 1971, Brumbaugh was hired by Ingham County as a Jailer II. (Brumbaugh Dep. at 16.) On January 10, 1972, he was promoted to the position of patrol officer. (Id.) On August 2, 1976, he was promoted to the position of detective. (Id.)

On March 14, 1984, Brumbaugh requested military leave from the Ingham County for the purpose of undertaking two years of active duty with the Michigan National Guard. (Plaintiffs' Exhibit 3.) This leave was granted.

On February 22, 1986, Brumbaugh requested an extension of his military leave for a period of three years. (Plaintiffs' Exhibit 5.) This extension was also granted.

In early 1989, Brumbaugh contacted Gene Wrigglesworth, Sheriff, to schedule a meeting to discuss his military status. According to Brumbaugh, his purpose in meeting was to inform Wrigglesworth that he intended to remain on military leave and to request that he be deputized as a special deputy so that he could avoid the requirement of retraining in the event of his future return to the Sheriff's Department. (Brumbaugh Dep. at 40.) On March 10, 1989, Brumbaugh met with the Sheriff.1 At the meeting, Brumbaugh informed Wrigglesworth that he was continuing on active military duty and requested that he be deputized. (Brumbaugh Dep. at 50.) Wrigglesworth declined to deputize Brumbaugh on the basis that he disliked special deputies. Wrigglesworth also requested that Brumbaugh sign a resignation letter that Wrigglesworth drafted at the suggestion of his attorney. (Wrigglesworth Dep. at 26-28.) Brumbaugh signed the resignation letter, which simply stated: "I the undersigned request that this be accepted as my resignation from the Ingham County Sheriff Department, effective March 13, 1988." (Plaintiff's Exhibit 9.) Brumbaugh understood that his resignation was for "administrative purposes." (Brumbaugh Dep. at 108.) He did not come to understand his statutory right to re-employment until after 1994. (Brumbaugh Dep. at 109.)

Brumbaugh remained an active duty officer of the National Guard until his honorable discharge and retirement effective September 30, 1999. At the same time, he remained an "associate" union member of the Sheriff's Department's union (Defendant Capitol City Lodge No. 141 of the Fraternal Order of Police) and paid union dues on a yearly basis. (Brumbaugh Exhibit 5.)

On January 21, 1999, Brumbaugh wrote to Wrigglesworth to request that he return to his detective assignment with no loss of seniority. (Brumbaugh Exhibit 6.) The letter was drafted after both a discussion of legal issues with Brumbaugh's attorney (John McGlinchey) and a conference as to these issues with Wrigglesworth. (Id.) The letter made a formal request for return to employment under the Uniformed Services Employment and Re-Employment Rights Act of 1994. (Id.)

Following the request, Wrigglesworth contacted the union regarding its position on reinstatement of Brumbaugh. The union responded that, under its collection bargaining agreement and under its reading of the Act, Brumbaugh had lost seniority and his right of reinstatement through his resignation. (Plaintiffs' Exhibit 12.) The union did not oppose the hiring of Brumbaugh as a entry level deputy. (Id.) Brumbaugh reapplied to the Department and was hired as an entry level deputy. It was understood between the parties that his right to re-employment as a detective, with seniority, would be resolved through litigation and was not waived by his accepting the entry level position.

To resolve this legal dispute, Plaintiffs Gene Wrigglesworth and Ingham County filed a declaratory action in this Court on January 31, 2000 seeking a declaration that Brumbaugh had no statutory right of re-employment because of his resignation. Brumbaugh has countersued the Plaintiffs for reinstatement, back pay and attorney fees under the federal statute and a Michigan statute relating to re-employment of public employees following active military service (Mich.Comp.Laws § 35.352). He has also cross-claimed against the union. Discovery is now complete and these cross-motions for summary judgment have been filed consistent with the Court's Case Management Order. Oral hearing of these motions is, in the opinion of this Court, unnecessary and would unduly protract the resolution of these motions.

STANDARD FOR SUMMARY JUDGMENT

These motions for summary judgment are brought pursuant to Federal Rule of Civil Procedure 56. Under the language of Rule 56(c), summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The initial burden is on the movant to specify the basis upon which summary judgment should be granted and to identify portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-movant to come forward with specific facts, supported by the evidence in the record, upon which a reasonable jury could find there to be a genuine fact issue for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If, after adequate time for discovery on material matters at issue, the non-movant fails to make a showing sufficient to establish the existence of a material disputed fact, summary judgment is appropriate. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548.

Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences are jury functions. Adams v. Metiva, 31 F.3d 375, 382 (6th Cir.1994). The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in the non-movant's favor. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548 (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505). The factual record presented must be interpreted in a light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Rule 56 limits the materials the Court may consider in deciding a motion under the rule: "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits." Copeland v. Machulis, 57 F.3d 476, 478 (6th Cir.1995) (quoting Federal Rule of Civil Procedure 56(c)). Moreover, affidavits must meet certain requirements:

[A]ffidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

Fed.R.Civ.P. 56(e). The Sixth Circuit has held "that documents submitted in support of a motion for summary judgment must satisfy the requirements of Rule 56(e); otherwise, they must be disregarded." Moore v. Holbrook, 2 F.3d 697, 699 (6th Cir.1993). Thus, in resolving a Rule 56 motion, the Court should not consider unsworn or uncertified documents, id., unsworn statements, Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 968-969 (6th Cir.1991), inadmissible expert testimony, North American Specialty Ins. Co. v. Myers, 111 F.3d 1273, 1280 (6th Cir.1997), or hearsay evidence, Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996); Wiley v. United States, 20 F.3d 222, 225-226 (6th Cir.1994).

LEGAL ANALYSIS
A. Federal Law Claim

Brumbaugh's federal law claim is made out under the Uniformed Services Employment and Re-employment Rights Act of 1994 (hereafter "USERRA"), Pub.L. No. 103-353, 1994 U.S.C.C.A.N. (108 Stat.) 3149, codified at 38 U.S.C. §§ 4301-33. This Act has an interesting legislative background that is pertinent to the claims in this suit.

1. Background

Protection of job security for armed services members is an old statutory protection which dates back to the Selective Training and Service Act of 1940. See Trulson v. Trane Co., 738 F.2d 770, 772 n. 4 (7th Cir.1984). Although aspects of the statutory protection have changed through the years with the enactment of different re-employment statutes, the basic concepts and protections have largely remained unchanged. Id. These statutes' basic premise is that: "He who was called to the colors was not to be penalized on his return by reason of his absence from his civilian job. He was, moreover, to gain by his service for his country an advantage which the law withheld from those who stayed behind."2...

To continue reading

Request your trial
23 cases
  • Woodard v. New York Health and Hospitals Corp., Civil Action No. CV-04-5297(DGT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 17, 2008
    ...employer's intent" (quoting Jordan v. Air Prods. & Chems., Inc., 225 F.Supp.2d 1206, 1208 (C.D.Cal.2002))); Wrigglesworth v. Brumbaugh, 121 F.Supp.2d 1126, 1132 (D.Mich. 2000) (holding that section 4312 creates an entitlement of reemployment that does not require proof of discrimination); 2......
  • Petty v. Metro Gov't of Nashville-Davidson County, 07-5649.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 18, 2008
    ...for a reemployment violation under § 4312, a plaintiff also must show discrimination under § 4311) with Wrigglesworth v. Brumbaugh, 121 F.Supp.2d 1126, 1133-39 (W.D.Mich.2000) (concluding that recovery under § 4312 is separate from and not in any way dependent upon § 4311). We find helpful ......
  • Ward v. United Parcel Serv., Case No. 1:12–CV–1749–VEH.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • December 16, 2013
    ...4311 and 4312 of the USERRA provide separate and distinct statutory protections for service members. See Wrigglesworth v. Brumbaugh, 121 F.Supp.2d 1126, 1134 (W.D.Mich.2000). Section 4311 prohibits employers from discriminating against employees on the basis of military service and retaliat......
  • Cantor v. Cohen, 05-1609.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 21, 2006
  • Request a trial to view additional results
1 firm's commentaries
  • USERRA Obligations: Navigating Uncharted Legal Waters
    • United States
    • Mondaq United States
    • March 26, 2004
    ...but no longer than five years. Recently the issue of pension and retirement benefit plans was addressed in Wrigglesworth v. Braumbaugh, 121 F.Supp.2d 1126 (W.D. Michigan 2000); Wrigglesworth v. Braumbaugh, 129 F. Supp.2d 1106 (W.D. Michigan Defined benefit plans, defined contribution plans ......
2 books & journal articles
  • Reemployment rights for the guard and reserve: will civilian employers pay the price for national defense?
    • United States
    • Air Force Law Review No. 59, March 2007
    • March 22, 2007
    ...4311, this provision [section 4312] does not require an employee to show any discriminatory animus"): Wriggleworth v. Brumbaugh, 121 F. Supp. 2d 1126. 1135 (W.D. Mich. 2000) ("Section 4312 neither contains nor implies a proof of discrimination requirement"): Jordan v. Air Products and Chemi......
  • Uniformed services employment and reemployment rights act (USERRA)
    • United States
    • James Publishing Practical Law Books Federal Employment Jury Instructions - Volume I
    • April 30, 2014
    ...Rights Act (USERRA) is not required to show that denial of re-employment was result of discrimination. Wrigglesworth v. Brumbaugh , 121 F. Supp.2d 1126, 1135 (W.D. Mich. 2000). Ninth: An employee who satisfied service duration and notice requirements of Uniformed Services Employment and Ree......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT